Reference no.: |
U-I-326/98 |
Objavljeno: |
Official Gazette of RS, no. 67/98, Official Gazette of RS, no. 76/98 and OdlUS VII, 190 | 14.10.1998 |
ECLI: |
ECLI:SI:USRS:1998:U.I.326.98 |
Act: |
Act on the Amendment to the Denationalization Act (Official Gazette RS, No. 65/98) (ZDen-B), singular provisions |
Operative provisions: |
Art. 1, Paras. 1 and 3, Art. 3, Para. 2, Art. 4, Para. 1 and Arts. 8 and 25 of the Act on the Amendment to the Denationalization Act (Official Gazette RS, No. 65/98) are abrogated. In Art. 1, Para. 2 of the same statute the words: "on the basis of an international agreement", are abrogated. In Art. 19 of the same statute the words: "if the subject of inheritance is a protected farmland", are abrogated In Art. 23, Para. 1, It. 2 of the same statute the words "according to the provisions of this statute", are abrogated. Art. 3, Para. 1, Art. 4, Para. 2, Arts. 5, 6 and 7, Art. 9, Para. 1, Art. 10, Art. 15, Para. 1 and Arts 16, 18, 22, 23, 24, 26 and 27 of the same statute, are not inconsistent with the Constitution. The petition of the Association of Owners of the Expropriated Property of Slovenia for the review of Art. 4, Para. 1 of the same statute is rejected. The petition of the Roman-Catholic Diocesan Office of Ljubljana for the review of Arts. 10 and 11 of the same statute is rejected. |
Abstract: |
On the basis of the challenged decision, only those buyers who bought property from the German Reich, Italy, or from other organizations established by the occupiers, would not be able to file their denationalization requests. All other buyers would, however, be entitled to file denationalization requests, although they had bought expropriated property from the Germans who moved to Germany, from persons of the German national origin who had moved out or escaped and pursuant to Art. 35 of the FPRY Citizenship Act did not acquire Yugoslav citizenship, and who also did not succeed to rebut the presumption of disloyalty (or proved that they were not of the German national origin). The Constitutional Court adopted a viewpoint that all legal transactions, irrespective of the characteristics of the parties involved, are to be treated equally, because all legal transactions had been concluded during equal political and economic circumstances, i.e. during the time of war and occupation. Since the legislature did not have any sound reasons for the described differentiation, the most basic condition for interfering with the right of denationalization claimants was not fulfilled. Regulation concerning to which citizens of a State that treats Slovenian citizens worse than its own citizens cannot acquire equal rights to Slovenian citizens is not unconstitutional. However, it is necessary to consider the different legal position of citizens of those countries which regulate the return of expropriated property to former owners from those countries which do not regulate this issue. The determination of reciprocity is a necessary measure in order that Slovenia achieves equal rights for its citizens as foreign countries have already recognized for their citizens, and that countries which have not yet regulated denationalization would also recognize in their future legislation the right to denationalization of the Slovenian citizens. Particularly the reason that some countries have not yet regulated the return of property dictates to Slovenia to as soon as possible determine reciprocity, and thereby also provide a greater opportunity of the Slovenian citizens that other countries would safeguard their right to denationalization. A subsequent determination of this condition does not affect the cases in which a foreigner has been recognized the right to denationalization, and, according to the regulations that govern the possibility to acquire ownership, issued a final denationalization decision. Therefore, the Constitutional Court in It. 2 of reasons for renewal, stated in Art. 23 of the amended ZDen, abrogated the words: "according to the provisions of this statute". For the autonomous determination of reciprocity is proportionate to the value of legislative goals envisaged, the Constitutional Court holds that the determination of diplomatic reciprocity is a too excessive measure being in contrast with the principle of proportionality. Following the logical interpretation as well as the interpretation concerning a purpose of the legislature, it is understood that the provision refers to the citizens of the countries which are returning (denationalizing, re- privatizing and similar) nationalized property to former owners, yet which are discriminating as to this return against the Slovenian citizens, and to the citizens of those countries which had nationalized property after World War II, yet which has not yet passed a denationalization act. Compared to the previous regulation the challenged provision of Art. 1, Para. 3 narrows the circle of denationalization claimants, and thus deprives the affected persons of their right under Art. 9, Para. 1 of the previous ZDen. Thus, for the challenged amendments the legislature did not have any reasons, for it grounded its view on a mistaken supposition that by the challenged provision the circle of denationalization claimants was not narrowed. The right to denationalization also pertains to persons who could not achieve by extraordinary remedies that the penalty of the divestment of their citizenship be reversed. Thus, ZDen grants the right to denationalization irrespective of the legality of acts on nationalization, issued on the basis of the regulations stated in Arts. 3 or 4 of ZDen. Since the challenged regulation interferes with the right to denationalization, without the legislature having had any sound reason for such an interference taking away the property rights already vested, which were constitutionally protected (Arts. 14 and 33 of the Constitution), the Constitutional Court abrogated the challenged provision. The challenged amendment of Art. 10, Para. 2 of ZDen, which is determined by Art. 3, Para. 1 of the amended ZDen, does not affect a different determination of the status of denationalization claimants, but only includes a guideline given to administrative bodies how to establish whether a certain person has had the right to compensation by a foreign country. Also on the basis of the General Administrative Procedure Act, administrative bodies must ex officio establish which law to apply in a particular case arising under administrative law (Art. 163). However, this does not deprive parties to denationalization proceedings of their right to prove the facts and circumstances decisive for such establishment Šor review]. Therefore, the challenged provision is not unconstitutional. The subsequent determination of special reasons for renewal in order to reverse unlawful final decisions means an interference with the institute of finality the purpose of which is to insure the stability and unalterability of legal relations. In Art. 158 the Constitution allows an interference with final decisions if such cases and the procedure for deciding on such interferences are determined by statute, however in this respect Art. 155 of the Constitution (the prohibition of retroactive legislation) and Art. 2 of the Constitution (the principle of a law-governed State) are to be considered. In the framework of the said constitutional provisions, statute may subsequently envisage an interference with a final decision only exceptionally and only if special justifying reasons exist (Art. 155, Para. 2 of the Constitution). Since by a final denationalization decision a denationalization claimant acquires the ownership or property rights, an interference with such a decision also means an interference with the constitutionally protected right under Art. 33 of the Constitution, which is only permitted if the conditions of a strict constitutional judicial review pursuant to the so-called test of proportionality are fulfilled. The introduction of a new legal remedy may exceptionally be allowed, but the review of a final decision may only refer to the review of legality of the decision at the time of its issuance, not also to the cases where the decision contradicts some subsequently adopted statute or other regulation which come into force after the decision's finality. Concerning that during the period until the adoption of the amended ZDen a certain number of obviously unlawful decisions had become final, the legislature had a sound reason to determine new reasons for renewal. It is necessary to consider that denationalization proceedings are not typical administrative proceedings, for the first concern property relationships which are as a rule adjudicated on by the courts. Thus, the Constitutional Court establishes that all new reasons for renewal are well-founded and necessary, and that by their determination the legislature did not excessively interfere with the property rights of denationalization claimants. Moreover, for reaching its objective, i.e. to achieve the lawfulness of denationalization decisions, the legislature chose a permitted and the mildest measure, for only in renewed proceedings it will be able to establish whether such a decision was unlawful. New reasons for the renewal of proceedings under Art. 23 of the amended ZDen refer to the worst violations of legality, and in order to institute proceedings a relatively short time limit of six month is determined. In view of the findings that Art. 1, Para. 2 of the amended ZDen became constitutional after the abrogation of the words "on the basis of an international agreement", the possibility to renew proceedings in the cases where the property right was recognized to a person who cannot be a rightful claimant would be unconstitutional, for it refers to the condition of reciprocity which at the time of the finality of a denationalization decision was not yet prescribed. In these cases a denationalization decision was at the time of its issuance and finality consistent with statute. A subsequently determined condition for the legality of a denationalization decision cannot affect the finality of the decision, and therefore cannot be a reason for renewal. Therefore, the Constitutional Court establishes that the reason for renewal under Art. 23, Para. 1, It. 2 of the amended ZDen is unconstitutional, in the part which relates to the possibility of the renewal of those denationalization proceedings in which the property right was recognized to the person who cannot be a rightful claimant according to the provisions of this amended statute. Thus, the Constitutional Court abrogated the words "according to the provisions of this statute". For the above-said reasons the Constitutional Court establishes that the introduction of the renewal of denationalization proceedings is constitutional. The possibility to request renewal means that nullity as a legal expedient to remedy the illegality of decisions reached contrary to Art. 10, Para. 2 of ZDen is an excessive measure, not being necessary nor needed for reaching a legislature's goal. Since Art. 3, Para. 2 of the amended ZDen does not pass the strictest constitutional-review following the test of proportionality, the Constitutional Court abrogated it. In case No. U-I-197/96 (DecCC V,174) the Constitutional Court already adopted the view that the property of organized religions in cases where these appear as denationalization claimants cannot in terms of constitutional provisions be equated with the property of feudal origin. From legislative documents the reasons which would substantiate the said limitation imposed on the return of real estate in kind do not follow. The Constitutional Court holds that there are no sound reasons to restrict the return of real estate in kind, determined by the amendment to Art. 19, Para. 1, It. 3 of ZDen. The basic principle of ZDen is the priority of return in kind (Art. 2 of ZDen). Also the Constitutional Court already in decision No. U-I-169/93, dated 30 June 1994 (Official Gazette RS, No. 42/94, DecCC III,83), took the view that it was in the public interest that the payments of public obligations, which should otherwise have been carried out through the Slovenian Compensation Fund, were replaced by denationalization in the form of substitutive property. The obstacles because of which property cannot be returned to rightful claimants in kind are determined by statute and base on the key point Šof denationalization] that by redressing injustices new injustices should not be made. The obstacle determined by the amendment to Art. 19, Para. 1, It. 3 of ZDen on this point also differs, concerning its contents, from other obstacles determined in Arts. 16 and 19 of ZDen. But since the Church is a denationalization claimant also as to the return of the property of feudal origin, which the legislature had taken into account, it was necessary to decide whether the origin of property was a constitutionally admissible criterion for regulating the form of the return of nationalized property. The legislature excluded return in kind for the reasons referring to the economic and functional characteristics of real estate. The origin of property is not such a criterion, thus its inclusion in Art. 19 of ZDen was arbitrary. Accordingly, the Constitutional Court abrogated Art. 4, Para. 1 of the amended ZDen. The Constitutional Court had established that the prohibition imposed on the return of the property of feudal origin had not been unconstitutional, insofar as it had not applied to the property of organized religions. The Constitutional Court had held that the measure of not recognizing the position of a denationalization claimant to former owners of the large estates of feudal origin had been in a democratic society necessary (Art. 1 of the Constitution) and also proportionate to the value of the legislative goal pursued. Thus, in the challenged provision the legislature completely followed the viewpoints of the Constitutional Court. The challenged amendment to the new Art. 19, Para. 3 of ZDen, which is brought by Art. 4, Para. 2 of ZDen, does not constitute a new obstacle to return in kind in view of the present function of nationalized real estate, for this obstacle was already constituted by the introduction of ZDen. By this amendment the legislature simplified argumentation and made uniform the criteria for establishing the existence of obstacles for returning real estate in kind. Since the challenged provision only means the definition of the uncertain legal concept of unproportionate expenses for substitution with another real estate, the provision is not unconstitutional. All provisions that refer to the position of a tenant as a party to denationalization proceedings, when they have the right to participate in proceedings to protect their rights or legal benefits, do not mean any change brought to the thus far existing regulation. The legislature specifically included them in the statute only because of a clearer definition in which cases a tenant may be a party to denationalization proceedings. The amendments to Arts. 25 and 26 of ZDen (Arts. 6 and 7 of the amended ZDen), which refer to the definition of the legal concept of "essentially increased value", or the "essentially decreased value" of nationalized property, mean certain changes in view of the thus far existing practice. By determining that in the case of the real estate of a higher value the criterion of 30% was not considered, but that in the case of the investment of social property a uniform criterion was to be introduced, that is a half of the first reported Gross National Product per citizen of the Republic of Slovenia in the year preceding the filing of a denationalization request, the legislature also established a more equal position of rightful claimants. Compared to the already described case law the new criterion represents a more just regulation. Regarding the consideration of a lower value of property returned the challenged regulation is, compared to the case law described, to the benefit of denationalization claimants. Thus, the challenged regulation does not interfere with any constitutional right of claimants. The legislature had good grounds to consider that the cases of investments by natural persons concerned the investment of private property in nationalized real estate. Therefore the challenged amendments to Arts. 25 and 26 of ZDen are not unconstitutional. According to the Constitutional Court, the legislature had sound reasons for adopting such regulation, and did not act arbitrarily. The prohibition to cancel a tenancy relationship and the statutory determination of the height of a rent do not mean the limitation imposed on free disposal with property, which represents one of the rights originating from the ownership right under Art. 33 of the Constitution. However, the protection of the ownership right according to the Constitution is not unlimited but must also consider the interests of other members of the community (Art. 67 of the Constitution). Reviewing several provisions of the Housing Act (hereinafter: SZ), the Constitutional Court in decision No. U-I-119/94 (Official Gazette RS, No. 24/96, DecCC V,32) held that the legal position of former holders of the right to tenancy concerning a tenancy relationship, which substituted the previous right to tenancy, could not be entirely equated with the classical tenancy relationship under civil law. The Constitutional Court already reviewed, in the said decision, the restriction of the height of a rent for apartments and decided that that was one of the measures of insuring the social function of housing property, and was thus consistent with Art. 67 of the Constitution. Thus, also the decision which refers to the restriction of the height of a rent for apartments, and which refers to SZ, is not unconstitutional. Insofar as the challenged decision refers to rents for business premises, the Constitutional Court establishes that this is not an interference with the property rights of denationalization claimants, for it refers to the height of a rent that is formed by market conditions. However, ZDen did not regulate the relationships which are made between denationalization claimants (owners) and tenants of business premises. This tenancy relationship is not protected as housing tenancy relationships, for it is not provided that denationalization claimants would need to make a lease with tenants of business premises for an indefinite period, which could be terminated only for reasons on the part of tenants violating the contract. The tenants of business premises do not enjoy enough legal protection which would ensure them the constitutional right under Art. 74 of the Constitution (free enterprise). Therefore, the legislature legitimately determined in cases where the tenants of business premises have increased the value of nationalized property by their investments, so that the landlord cannot terminate a tenancy relationship without reimbursing the tenants for the value of the investments. The measure, i.e. the prohibition to terminate a tenancy relationship, is appropriate and proportionate to the right of the tenant who during the time of the prohibition to terminate a tenancy relationship still claims the reimbursement of their investments. Therefore, the Constitutional Court decided that Art. 5 of the amended ZDen is not unconstitutional. The Constitutional Court establishes that the challenged provision of Art. 8 of the amended ZDen is contrary to Art. 2 of the Constitution, because of its vagueness and contradiction within the challenged provision itself, as well as with the regulation of denationalization in general. Thus, the Constitutional Court abrogated this provision. Concerning the fact that final decisions under Art. 25 of the amended ZDen refer to those cases regulated by Art. 8 of the amended ZDen, it was also necessary to abrogate Art. 25 of the amended ZDen. By Art. 9, Para. 1 of the amended ZDen not only the return of farmlands, farms, forests and substitutive lands to farmers is restricted, but also preferential criteria as to the allocation of substitutive lands, if more than one claimants are interested in the same substitutive land, are determined. The criteria which determine the right to a preferential purchase under Art. 21 of the Farmlands Act are completely well founded also for establishing a preferential right as to the allocation of substitutive lands. Therefore, this matter does not concern an interference with the property rights of denationalization claimants, but the amendments at issue were adopted in order to merely foster the process of denationalization, and enable decision making in cases where due to the competing interests of claimants to substitutive lands it would not be possible to issue a decision on the return of a substitutive land. Art. 16 of the amended ZDen, which provides that a historical land certificate of the Section "C" Šof the land register] is to be enclosed with a denationalization request, has only interpretative meaning and does not violate the principle of equality. The amendments to Art. 70 of ZDen (Art. 18 of the amended ZDen) does not mean determining a new obligation of the parties who request denationalization; therefore it is not unconstitutional. Art. 19 of the amended ZDen is unconstitutional insofar as it also does not allow the application of the Farms' Inheritance Act in the cases where the subject of inheritance is a part of a farm returned through denationalization, which was later designated as a protected farm. Therefore, the Constitutional Court abrogated the words "if the subject of inheritance is a protected farm". The challenged amendments to Art. 88 of ZDen (Art. 22 of the amended ZDen) only explain that the cultivation of farmland pursuant to the statute which regulates the area of farmlands, and the carrying-out of works in forests consistently with the plans for forest management, mean permitted disposals. By the regulation determined by Arts. 24 and 26 of the amended ZDen an equal treatment of rightful claimants and other persons who are entitled on the basis of these decisions to property rights, and also among rightful claimants themselves, was established. The statute determined for all participants in denationalization a uniform deadline for filing denationalization requests, therefore the equal treatment insured by the said provisions is consistent with the principle of equality under Art. 14 of the Constitution. The application of provisions which passed the strictest constitutional-review is possible only through the regulation under Art. 27 of the amended ZDen; therefore the challenged decision is not unconstitutional. Concerning the fact that this decision means a final decision of the Constitutional Court, also the temporary suspension of the implementation of the amended ZDen ceases to apply on the day of this decision coming into force, that is on the day after the promulgation of this decision (Art. 43 of the Constitutional Court Act). Therefore also the said time limits under Arts. 23 and 26 of the amended ZDen will begin to run on the day when the temporary suspension imposed on the statute's implementation ceases to apply. |
Password: |
Denationalization, the status of a rightful claimant. Reciprocity and retorsion. Citizenship, the loss of citizenship. Penal code, criminal procedure, a legal remedy, subsequent decision making due to an extraordinary legal remedy filed. Denationalization proceedings, the nullity of a decision. Renewal of denationalization proceedings. Increase of the value of property - investments. Decrease of the value of property. Unproportionate expenses. Position of tenants in denationalization proceedings. Mortgages. Substitutive lands. Status of a farmer. Ownership, the ownership of feudal origin. Inheritance of a protected farm and its parts. Temporary injunction, the temporary suspension of the execution of a statute. Principle of proportionality. Constitutional Court, the determination of a manner of the execution of a decision. Legal interest as a procedural condition to institute proceedings before the Constitutional Court on the basis of a petition. Concurring opinion of a Constitutional Court justice. |
Legal basis: |
Constitution, Arts. 1, 2, 7, 14, 33, 41, 67, 68, 71, 74, 155, 158 Constitutional Statute for the Implementation of the Constitution (UZIU), Art. 9 Citizenship Act (ZDRS), Art. 2 FPRY Citizenship Act, Art. 35 Administrative Procedure Act (ZUP), Arts. 49, 163, 249, 252 Civil Procedure Act (ZPP), Arts. 421, 423 No-Litigation Civil Procedure Act (ZNP), Art. 37 Housing Act (SZ), Arts. 53, 147 Farmlands Act (ZKZ), Arts. 21, 22 Land Register Act (ZZK), Art. 50 Constitutional Court Act (ZUstS), Arts. 21, 25, Art. 40, Para. 1 |
Document in PDF: |
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Type of procedure: |
review of constitutionality and legality of regulations and other general acts |
Type of act: |
statute |
Applicant: |
Association of the Owners of the Expropriated Property of Slovenia, and others |
Date of application: |
21.09.1998 |
Date of decision: |
14.10.1998 |
Type of decision adopted: |
decision |
Outcome of proceedings: |
annulment or annulment ab initio |
Document: |
AN01652 |
